Did President Obama Break the Law in Prisoner Swap?

A promotion for petitions by Change.org calling on the closing of the detention facility at Guantánamo Bay are pictured during a briefing in May 2013 with Rep. Jim Moran, D-Va., in the Rayburn Building on Capitol Hill. (Tom Williams/CQ Roll Call)

Republicans in Congress, and even some Democrats, have heard the Obama administration’s explanation for why it didn’t need to notify Congress 30 days in advance of the Guantánamo Bay Taliban prisoner swap for Bowe Bergdahl and found it lacking. The Senate Armed Services Committee has a briefing this coming Tuesday, and the House panel has a hearing the next day.

But what do the legal experts say?

There is no consensus, exactly, since there are arguments for both the administration’s position and the GOP’s on the statutory requirement for congressional notification vs. the president’s power to act in an emergency. And none of the experts line up neatly and ideologically based on any affiliations with past Republican or Democratic politicians. But among those who say Obama flouted the law, there are those who aren’t all that fired up about it as an egregious offense.

“It’s a clear example of the President defying a statute based on his constitutional powers, the same sort of thing Bush did, but this one is pretty minor,” Eric Posner, a University of Chicago law professor, was quoted as saying in a New York Daily News’ columnist’s evaluation of the subject.

Jack Goldsmith, a former Justice Department official under President George W. Bush who notably questioned a national security initiative by the president that led to a dramatic hospital bed confrontation between the White House and then-Attorney General John Ashcroft, argued that the Obama administration has potentially disregarded several laws, in fact.

At the same time, Goldsmith laughed off former Vice President Dick Cheney’s criticism of Obama not complying with the notification requirement, writing at Lawfare that Cheney was rather fond of citing the president’s national security authority to “go-it-alone” under Article II of the Constitution on “military commissions, detention, surveillance, interrogation, and other issues.”

There’s another train of thought, slightly off the question of whether the swap violated the law, about whether Obama, had he not made the trade, would’ve soon run afoul of international law by the end of 2014 when combat operations cease in Afghanistan. Ken Gude of the Center for American Progress and John Bellinger of Arnold & Porter LLP (who served under Bush) make that point.

Those more sympathetic or open to the administration’s case – although not in all cases endorsing it – include Marty Lederman, professor at the Georgetown University Law Center, writing at Just Security; Stephen Vladek, also of Just Security, and an American University law professor (via the Wall Street Journal); and William H. Taft IV, a former official in the State Department and Defense Department (via WSJ).

Those more sympathetic to the GOP argument include Lawrence Rosenthal, a former federal prosecutor who teaches constitutional law at Chapman University in California (also via WSJ); Ilya Somin, a professor at George Mason University School of Law, writing at The Volokh Conspiracy; and Timothy Sandefur of the Cato Institute.

rvauthor

June 9, 2014
2:10 p.m.

I would no sooner trust most Members of the U.S. Congress to get involved in, or provide meaningful commentary, regarding national security activities, including negotiating for Members of Armed Forces, than I would want them to get involved in my medical treatment as they did with Mrs. Schiavo.

The Department of State and Department of Defense are the federal departments with the mission to conduct oversight and execution of mutual release of POWs now, as they were when Sec’y of State Kissinger negotiated the release of American POWs with Vietnam.

If Congress want to be closely involved, other than at arm-length oversight, let them volunteer for service in the Armed Forces and vacate their seat(s) in Congress. POWs and civilians have a lot more to lose with Congress intervening and making go/nogo decisions.

Goengo

June 9, 2014
3 p.m.

The five Taliban commanders that Obama released are not POWs. Prisoners of war are uniformed soldiers following the orders of the country they represent. nation, The Taliban certainly does not fit that definition. Two of these guys are wanted by the UN for trial in the Hague for war crimes. These guys slaughtered women and children, and even killed women in a soccer stadium – just for fun. Their reign of terror in Afghanistan preceded 9/11, and will continue again as soon as our soldiers leave – if not sooner.

David in MA

June 9, 2014
3:32 p.m.

rvauthor

June 9, 2014
4:13 p.m.

I agree that the detainees in Gitmo are not POWs. I also agree that the DoD and State Department should retrieve any American soldiers they can retrieve and that Members of Congress are not qualified to participate in the execution of any swap activities. We had the same problem in releasing VC and North Vietnamese POWs to return, knowing they may well continue barbarous activities.
The fact is the U.S. still has approximately 140 or so detainees in Gitmo. The U.S. controls the release activity, notwithstanding that they apparently will have to be released based on current federal laws and regulations regarding Gitmo detainees.

June 9, 2014
2:17 p.m.

David in MA

June 9, 2014
3:36 p.m.

AND, what about Lindsey Graham, 31 years a JAG….and he is unwilling to go after the POS, 31 years, a military lawyer should have knowledge of prosecuting under the UCMJ! And, obammy, as CIC is per say in the military!
GO GET HIM, LINDSEY, TAKE HIM ON UNDER THE UCMJ!

Layla

June 9, 2014
4:28 p.m.

Mike

June 9, 2014
2:51 p.m.

ever wonder…how many times have they…this administration broken the law and nobody seems to be able…check that willing to do anything about it…eric Holder unwilling to uphold the laws of this country…Obama ordering drone strikes on American citizens… trading terrorist without Congress’ approval is just one more thing that no one will do anything more than rant about…no one is holding anyone accountable for fear of being called a racist.

Dennis Garwitz

June 9, 2014
2:56 p.m.

Fact is just about every president breaks the law but is never
held to account for it and never has one been sent to jail. Even Lincoln broke
the law by putting the whole Maryland legislature for the rest of the civil
war without trial in jail for trying to succeed from the union. I think he did
what was needed.

In my opinion we may not break the law as a nation allowing so
many Muslims in this country but look what they bring crime and insurection.
Islam is not a religion it is a form of government brainwashing and rule by
terror like communism and Nazism and should not be accorded the respect of law
for a religion anywhere.

David in MA

June 9, 2014
3:33 p.m.

Goengo

June 9, 2014
3:49 p.m.

Perhaps other Presidents have broken the law as well, especially obscure ones. Nixon broke fewer laws than Obama, but he was forced to resign before impeachment. Obama has blatantly and repeatedly ignored (or “amended”) so many laws that I am amazed that he is still in office.

If Obama were Caucasian, I believe he would have been impeached. Unfortunately, Congress is all too aware of the fact that they would be labeled as ‘racists’ if they actually impeached. There is just too much concern over accusing the “first black president.” Obama seems aware of this, and his misdeeds have become even bolder, as he feels secure in doing so.

I long for the day when race is no longer a factor – when being black is no longer disadvantageous, BUT is not advantageous as well.

ME

June 9, 2014
8:02 p.m.

RonThundrEagle

June 10, 2014
1:41 a.m.

I agree ME and it seems that no one is willing to say that these days. And THAT is the major problem we have, everyone is so scared of the “Racist” word and so they will allow him to do what ever he wants to which makes them as bad as him if not worse. They are afraid of the riots that might break out if they did their jobs so he just keeps on doing what ever he wants to up there. He will NEVER face impeachment no matter what he does and that is really bad if you ask me but then they don’t ask me LOL. I’m just another Disabled Veteran that has to worry about his health care with the VA system that will never be fixed either.

Harold L. Harris, Sr.

June 9, 2014
5:53 p.m.

I would suggest that all religions are about the same, most want to control the government, even the Christians want to impose Christian beliefs as the official belief of this nation, so it is unfair to suggest that one Religion right and all the others are just governments because that is not true. Religion has been at the root of every war, even the Civil war in this country. Now, that said, I profess to be a Christian, however I only read the New Testament in the bible because I strive to understand the teaching of Jesus, someone that walked the earth in history, not the laws written by some who say they are messengers of God, because they may have had a hidden agenda.

The President what he had to to free this individual, so now we need to wait and allow the UCMJ (Uniform Code of Military Justice) take it course to determine if he is guilty of anything. As for this President breaking laws, if he has, with the hate for him in this Congress, do you not believe that he would have already been impeached even if there was no chance that it would be upheld in the Senate. They Impeached President Clinton with no chance of it standing, so I doubt if they have anything whatsoever they can use to Impeach him except for a total disdain for his being elected in the first place.

ME

June 9, 2014
8:06 p.m.

All religions are about alike–except if you are a Christian you will be PROFILED from NSA to the IRS!! That is not being the same!
As far as “this individual” goes, he left because he WANTED to go–leave him there and get the guy from Mexico. Eleven thousand for one, OK?

Dennis Garwitz

June 10, 2014
2:39 p.m.

I am afraid I have to disagree. Every
Muslim country is ran by the Muslim religion it is their law. How many
religions besides ISLAM do you know that condone HONOR KILLING??? How many
other religions do you know approve killing homosexuals, women for so called
“ADULTERY”, cutting off hands or feet as punishment for something? Public
stoning to death of a women for practically anything they choose?

Joe Turner

June 11, 2014
10:24 a.m.

While we “enlighted Christians” know and belive this is all wrong, we also do not understand that this goes all the way back to Abraham who threw out is servant gilr by which he had a son, upon the urging of his formerly bareen wife who conceived late in lie and begat Issac.
No one who grew up and has lived in the USA can get into the mind of another people who have been following tradition for 10,000 years.

Joe Turner

June 11, 2014
10:20 a.m.

You were going so well until you tried to define Islam. You have to remember their was a time when Christians invaded the Middle East to try to claim Jerusalem for themselves and during which they killed Muslims promiscuously . And those who refused to recant either Judaism or Isolam were turned over to the torturer Torquemada and the Spanish Inquistion.
I hate the terrorists and feel we are again trying to fight a war while holding our punches. I think Islam is wrong, but Chritianity is full of flaws also.
There just IS no easy answer.

Frogeye

June 9, 2014
3:20 p.m.

David in MA

June 9, 2014
3:30 p.m.

Hey, what the heck, break one law or many laws, what are “they” gonna do about it?
Kill one or a hundred, ya only fry once!
Carry a gun to rob a bank, big deal both are illegal, so what, ya only go to jail once!
Get the point?

RightStuff

June 9, 2014
3:31 p.m.

p0rkch0pian

June 9, 2014
3:48 p.m.

The maniacal Marxist breaks a new law just about every time his lips move. Can someone explain why the GOP House doesn’t cut off the Criminal Enterprise’ money? Is it possible that incumbent House Members are so Evil that they don’t care what sort of gulag faces their grandchildren – as long as those members can hang on, long enough to get cushy retirements?

disqus_A6K3VBf8Zn

June 9, 2014
3:56 p.m.

Layla

June 9, 2014
4:26 p.m.

The GOP would NOT have filed for impeachment. While they have the votes for impeachment in the House, they likely do not in the Senate. If you want to impeach Barack Obama, you are going to have to vote the Democrats OUT of the Senate.

This president has broken many laws and NOT ONE Member of Congress is making a move to stop him. In essence, we have no checks and balances anymore. We have a dictator in the White House, courtesy of the United States Congress.

TashaTchin

June 9, 2014
4:45 p.m.

Layla

June 9, 2014
5:14 p.m.

Good point, however when I say no one is stepping forward, I mean no one in either body. That is not going to sit well at election time.

The other issue that the GOP appear poised to sign on for immigration legislation. They will not even enforce the laws we have. Staying on this track will cost them the next election. We have 92,000,000 Americans no longer in the work force and the Chamber wants to bring in immigrants so they can offer them less to work and will be exempt from paying for Obamacare for them.

TashaTchin

June 9, 2014
6:34 p.m.

Honey, the Republican Party has been AWOL on border security since George H. W. Bush took the oath of office back in 1989. This is not a new thing, it has been going on for decades without consequence to the Party. In fact, the Party nominated notoriously open-borders George Jr as the Party’s standard-bearer in 2000.

So, why are you surprised and outraged by the Party’s current actions? They are genocidal maniacs, with the possible exception of Senator Jeff Sessions.

I left the Republican Party back in 1990 because of the first Bush’s treason. To paraphrase the late, great Ronald Reagan: “I didn’t leave the Republican Party, the Party left me!” And, It will be a cold day in He!! before I come back!

Statement of Mark K. Reed before the Subcommittee on Immigration, Border Security, and Citizenship and the Subcommittee on Terrorism, Technology, and Homeland Security, May 17, 2005.

“Almost twenty years ago President (George H. W.) Bush declared the War on Drugs. I was present at a high-level strategy meeting between representatives of federal law enforcement, DoD (Department of Defense), and the State Department regarding the urgency of sealing the Mexican border to stop drug smuggling. When DoD stated that they were capable of detecting and interdicting any intrusion, but could not distinguish between groups of migrants from drug smugglers until interdiction, the dialogue became difficult. When DoD refused to entertain the idea that they should only detain drug smugglers upon interdiction, the meeting was abruptly terminated.”

(You will remember that this is the same President Bush who was elected just as the enforcement portion of the 1986 amnesty kicked in. So much for any enforcement in a “comprehensive” immigration reform package).

Layla

June 9, 2014
5:18 p.m.

There’s only a few weeks left until the summer recess swallows
Congress’ legislative agenda for 2014, but a group of key Republicans
haven’t given up immigration quite yet. (Breitbart, Drudge headline)

Paul Ryan is going to cost the GOP seats in the House as well as any chance of winning the Senate if he stays on this track. Americans are outraged at both sides.

cherylpet

June 9, 2014
7:53 p.m.

Hey Layla, is it easy to talk out of your butt? What you write makes about as much sense as one who is doing such a thing! How about a list of the President’s “crimes?” How about if Bush hadn’t manufactured this war, this entire subject would be a moot point? How about that Republicans created the problem at Benghazi? They stirred up the crowds, took money away from the security; gee, almost like they WANTED it to happen….! Bush gave up on looking for Bin Laden, because he claimed he was marginalized, yeah riiiight! I seem to remember that Bush acted on his own quite a lot! More of that Right Wing amnesia! Republicans can step all over the Constitution, and then rail at anyone who is still withing the letter of the law! Republicans would let the guy die, because they are just that way! If you had a son, or daughter, I think you would want them safe, and then find out what happened. If not, you would be the biggest piece of sh** ever…and that is not yet off the table anyway!

TashaTchin

June 9, 2014
4:50 p.m.

Two of the five faced war crimes in the UN for the massacre of Shiite Muslims. So, at least two would have never been released until AFTER their World Court trials. So, that in itself puts the lie to those who would say that the two would be released at the end of the war. And, all the rest would have faced could have also faced trial just like the Nazis at Nuremberg after WWII.

JIMBO

June 9, 2014
4:54 p.m.

Wake up America. Obama could care less about not leaving one of his own behind. Obama is a confirmed Muslim and even has Muslim brotherhood members on his staff. He accomplished what he set out to do and released the worst of the worst to be free to kill more innocent people,preferably americans. Allah will surly reward him in the afterlife. Forget about wither he broke the law or not. He breaks the law all the time. Be more concerned about the consequences of his actions. These released murderers have already stated that hey will use this tactic to there advantage in the future. No one will be safe from them. Forget about wither the released soldier was a traitor or not. The problem will be decided by the military and he will be dealt with accordingly. The real traitor is you president and he is the one that needs to be dealt with.

Gary

June 9, 2014
5:11 p.m.

This isn’t the 1st time this President has bent the law in his direction, but no one seems to have the intestinal fortitude to do anything about it….. I would guess that they are afraid to become unpopular with the minority vote….

Layla

June 9, 2014
5:24 p.m.

Joe Turner

June 9, 2014
5:32 p.m.

cherylpet

June 9, 2014
7:33 p.m.

Well, you are RIGHT! I wouldn’t even think my life would be worth a plug nickel, if my fate were in the hands of this do nothing, corrupt Congress! (Maybe if my name was Koch, yeah, they’d run to my rescue, with hand extended!)

Layla

June 10, 2014
8:57 a.m.

Joe Turner

June 10, 2014
10:16 a.m.

If you take the time to get the Congressional districts maps for your (or all ) Congressiional districts;you will find that they have been gerrymandered (boundries set to favor the incumbent party and person) So are term limits, because the terms are set by the Constitution and can’t be changed without a Constitutional Convention and a majority vote state by state. You need to work at local level to be sure you weed out the worst in primary electons. .

jarnkm

June 11, 2014
12:07 a.m.

It isn’t the entire Congress, but mainly the Demorcatic side and the “Progressive” Republican portion. Remember, the CPUSA sued the Democratic Party for stealing their agenda, changing its name to Progressive and claiming it as their own! I’d say that put a perfect definitive ‘sign’ over their heads. Obama’s bad because he’s illegally in office and a Muslim, but it started much earlier. In 1963 the “45 Communist Goals for America” were entered into the Congressional Record. By following the guidelines outlined in the Communist Manifesto, Washington has passed the majority of those goals down to “We the Sheeple”, because the majority still trust what the tell us.

patriotsongs

June 9, 2014
5:32 p.m.

International law? Wasn’t that why the Constitution was written, to get us away from what other nations are doing? Oh, I forgot, the Constitution is “just a ,,, piece of paper”, and our Presidents and Congress can just ignore it whenever they want–which seems to be always. Ditto the courts. Sigh.

Joe Turner

June 9, 2014
5:35 p.m.

I just can’t believe how dense and stupid Congress is. If you do not think, that the prisoners were released with electonic implants that will keep us informed of what they do from now on, then you just don’t get it and don’t deserve to be consulted.
Hey !! Its 2014, the NSA is on duty. We have drones everywhere. We will know more about the Taliban as a whole now, not just what was on their shattereed mnds at Gitmo

cherylpet

June 9, 2014
6:04 p.m.

Yeah, give it to the obstructionist Congress who already have the man tried, convicted, and sent to execution! Where is the fairness in that? And the so-called Democrats questioning it are more than likely Blue Dogs, who are, as you may know, Republicans in Democrats’ clothing! President Obama saw an urgent necessity to release this American soldier. He would also have been demonized, had he not done it, and the man had been murdered! Republicans use this as a political move, and it is reprehensible! For as we know, when it comes to human life, the Republican response is, “LET HIM DIE!”

Layla

June 9, 2014
6:20 p.m.

cherylpet

June 9, 2014
7:29 p.m.

You were there? You were an eye witness? The man hasn’t even had a chance to give his side of the story! You certainly don’t sound very American! I hope that if you ever get arrested, they just throw you into prison w/o being given due process, since that is what you seem to like so much! What an incredible jerk!

dav

June 9, 2014
6:26 p.m.

TekRed

June 9, 2014
6:31 p.m.

Ovomit has made a habit of breaking the laws of the land… this is just the latest. I have urged my reps for removal from office as a traitor, then prosecution. Though the harm he and his czars have caused our country is unprecedented, I believe it is but a drop in the bucket of what is to come. All should be prepared for manipulation by this regime to keep him in office for a third term. One way would be by creating violent civil unrest nationwide, in order for him to declare martial law and set aside elections. Or to manipulate any reason to declare martial law, giving him even more control and power. Make no mistake, FEMA prison like camps across the nation, plus long trains loaded with tanks and heavy equip seen, photographed and reported, traveling from our northern borders to who knows where, are not for no reason. Hope for the best, but prepare for the worst become the watch words for every American. God Bless America – in God we trust. HE is our best, maybe only, hope.

cherylpet

June 9, 2014
7:25 p.m.

What happened to Reagan? Trading guns, for crap sake! Not a damn thing happened to him! What he did was worse by so much; it isn’t even the same thing! Gitmo is ready to be closed down, but Repubes say NO! The prisoners in exchange won’t even be released! They will continue to be detained for quite some time! Right Wingers sure have selective amnesia when it comes to their own practices!

David in MA

June 9, 2014
10:43 p.m.

Frogeye

June 10, 2014
1:10 a.m.

Driver_S

June 10, 2014
7:24 a.m.

Obama thumbs his nose at our Laws and Constitution every chance he gets. The fact that he released 5 top ranking terrorists back to their terrorist organization is clearly against our laws and military advise he was given. He has supplied a terrorist organization with their assets to further their agendas of killing.

wanda jefferson

June 10, 2014
11:53 a.m.

I do not think he should have remained a prisoner he should have been bought home but not enough information was given to the president about him and the president not knowing all the fact should have requested more information but had he done something about unemployment I would be more forgiving but since he or mr bonehead has done nothing I could care less about all the problems that this is going to cause him.

Mike O'DEonnell

June 11, 2014
12:41 a.m.

I would need a great deal more information to say the President was right or wrong in not going to Congress and/or if making this swap was the right thing to do or not. I don’t think ANY of us laypersons would EVER have ALL the information that was considered in making this decision. Had he however; gone to Congress, there’s no doubt the majority would push “diligently” against the President whether he was leaning to make the trade or the trade was offered and the President was deciding against it. I am SO disgusted with the disruptive politics being played by the majority which is simply leading to NOTHING getting done and I’d be saying the same thing if it were Democrats playing American Roulette against a Republican President.
They gun for President Obama because he’s not fixed the Veteran’s Administration problems yet, they didn’t complain when President Bush (who was also a two term President) did nothing to curb the discrepancies. Because we went after the non existing weapons of mass destruction (Bush’s unjust war), today’s Veteran’s Administration has a great deal more brave American Vet’s to care for. These additional patients certainly taxed an already over-taxed system. Congress, let’s end the problems now. Provide the monies to enter VA’s overflow into the Tri-Care system. YESTERDAY!.

Joe Turner

June 11, 2014
10:15 a.m.

I, of course, disagree with Five X Five. Additionally, I live near one of the largest military cemeteries in the USA. There are MANY graves not marked with a cross but with the Star of David or the Crescent of Islam.
I live in a heavily Military town with a major USAF Base, but 50% of the doctors on one of two local hospitals are Muslims. People trust them for medical treatement for them and thier children. Conclusion: Don’t over generatlize except for Congress most of which is still heavily in debt (personally)

Dennis Garwitz

June 12, 2014
10:30 p.m.

Mr. Turner I am not supporting Christianity BUT I will have to say that yes Christianity did some awful things but they evolved to a much better state than they were in the 1St. Century or even the 19th Century my question to you is WHY DIDN’T THE ISLAMIC RELIGION IMPROVE ANY? I DON’T SEE THAT IT HAS FROM THE TIME IT WAS INVENTED.

Dennis Richardson

Aug. 22, 2014
8:23 p.m.

Arrest, Indict, Try, Prosecute, Convict, Impeach for violating the law; Arrest, Indict, Try, Prosecute, Convict, Sentence and Execute for TREASON Barack H. Obama, the forty-four President of the United States of America. Then take back that forty-four number as a label as if Barack Obama’s administration never existed. Bury him in Africa, in the nation of Kenya. Then Erase ALL his executive orders and legislation, jail his many allies for treason amongst members of Congress.

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Aug. 2, 2015
12:09 p.m.

Hi, i read your blog occasionally and i own a similar one and i was just curious if you get a lot of spam comments? If so how do you prevent it, any plugin or anything you can recommend? I get so much lately it’s driving me crazy so any help is very much appreciated.